Blind men are the assessees, the elephant is the income tax department, the courts and tribunals, sometimes understanding and sometimes not so. We`re stuck in between!! Counsel`s opinions do not matter. There should be a preliminary ruling authority which, in such cases, is binding on all parties. [Controversy: §45 (5A) merely postpones the method of calculating the capital gain and the date of taxation. The year of the „transfer” was not modified by the Finance Act – 2017, but section 2 (47) was not affected. Some controversies and disputes may arise regarding (a) the year until which the indexation performance would be available and (b) the admissibility of the capital gains exemption u/s 54, 54F, 54EC, etc. However, since all of these provisions are advantageous provisions, it is likely that the courts will regulate them for the benefit of taxpayers in the coming years.] Thus, for the land master, if he has concluded sales contracts with buyers of housing, there is no handover of the property by the owner, since the apartments are still under construction. Thus, the provisions of Article 53A are not attracted. In summary, the new section 45, paragraph 5A and 2(47) of Law u/s 2(47) of the Act fixed the tax year of the capital gain, regardless of the year of capital transfer (in the form of land); and also eliminated subjectivity in the valuation of non-monetary counterparties received/accumulated as a result of the transfer under the development agreement. Judicial GAAR: otherwise, in the absence of a legal GAAR as above, the powers of the courts will remain beyond the specific provisions of GAAR (judicial GAAR) and even if a particular case does not fall under the specific provisions of GAAR (may be due to tax advantages below the threshold of paragraph 3 cr. or for other reasons), the courts may consider the same as an abusive tax avoidance agreement by exercising their intrinsic powers, as in the past Supreme Court judgments such as Sumatial vs.
CIT (1995) 214 ITR 801 (SC), Mcdowell & Co. vs CTO (1985) 154 ITR 148 (SC) etc. on recent High Court judgments such as CIT vs Carlton Hotels Pvt. Ltd. (2017) 399 ITR 611 (All. HC), CIT vs. M P. Purushottam (2019) 105 CCH 106 (Madras), etc. iv. in a case where the asset is transferred from the owner to a joint development contract with M/s. XYZ Developers Pvt Ltd is converted or M. .
B entered into a joint development agreement on 1.04.2018 and handed over the property to M/s. XYZ Developers Pvt Ltd on the aforementioned date and following such an agreement, Sir. . . .